April 29, 1745 – Birth of Oliver Ellsworth, Third Chief Justice of the United States

Oliver Ellsworth is another “Founding Father” about whom few Americans are aware. Born in 1745 in Windsor, Connecticut, he was a lawyer, judge, politician and diplomat. He helped draft the U.S. Constitution, and was instrumental, along with Roger Sherman – also representing Connecticut, at fashioning the “Connecticut Compromise” between more populous states and less populous states. [This compromise blended the earlier Virginia (large-state) and New Jersey (small-state) proposals regarding apportionment for delegates in both Congress and the Senate.]

Engraving of Oliver Ellsworth

Ellsworth became one of the two original pair of Senators in the new United States government, and was the chief author of the Judiciary Act of 1789, which defined the contours of the federal judiciary of the United States.

Among other provisions, the Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. It also defined their jurisdiction, and created 13 judicial districts with both circuit courts and district courts within the 11 states that had then ratified the Constitution.

Ellsworth, aligned with the Federalist Party, served as a key Senate ally to Alexander Hamilton. He led the Senate passage of Hamiltonian proposals such as the Funding Act of 1790 and the Bank Bill of 1791. He also helped ratify the United States Bill of Rights and the Jay Treaty.

As the first U.S. President, George Washington was responsible for appointing the entire Supreme Court; he appointed a record ten justices. In 1789, Washington offered John Jay the new opportunity of becoming the first Chief Justice of the United States Supreme Court, which Jay accepted. He was unanimously confirmed on September 26, 1789 and remained on the bench until his retirement in 1795. Washington next appointed John Rutledge, the senior Associate Justice to the position, on a temporary basis because the Senate was in recess. But Rutledge publicly spoke out against the Jay Treaty in 1795, angering Federalists, including Washington. His appointment to the Supreme Court was then unanimously rejected by the Senate when it reconvened. As the Senate website reports:

Rutledge thus became the first rejected Supreme Court nominee and the only one among the fifteen who would gain their offices through recess appointments not to be subsequently confirmed. In turning down Rutledge, the Senate made it clear that an examination of a nominee’s qualifications would include his political views. Those who differed substantively from the majority of senators could expect rough going.”

President Washington satisfied dissent in the Senate by nominating Oliver Ellsworth, who was favored not only by virtue of being a member of that body, but because he had authored the Judiciary Act. Ellsworth was unanimously confirmed and served until 1800, but the Ellsworth Court handled few influential cases.

Oliver Ellsworth

Ellsworth simultaneously served as an envoy to France from 1799 to 1800, signing the Convention of 1800 to settle the hostilities of the Quasi-War. In the 1796 presidential election, Ellsworth received several electoral votes. Poor health caused him to retire from the Court in 1800, and he was succeeded by John Marshall. Ellsworth then served on the Connecticut Governor’s Council until his death in 1807.

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April 14, 1947 – Landmark District Court Case of Westminster School Dist. of Orange County v. Mendez re Segregation

Historically, Hispanic children were segregated from Anglo children in many public school districts in the southwestern states. The legal struggle in the courts to rectify that segregation took several interesting turns as it (1) influenced, and (2) was influenced by, the litigation efforts by blacks to end racial segregation in the public schools.

A landmark case in the struggle for equality was Westminster School Dist. of Orange County et al. v. Mendez et al. (161 F.2d 774, 9th Circuit), decided April 14, 1947. This book for children tells that story from the point of view of young Sylvia Mendez.

Sylvia Mendez was born in 1936 to a Mexican immigrant father and a Puerto Rican immigrant mother. When Sylvia was eight, her aunt took her, her siblings, and her nephews and tried to enroll the children in the “whites-only” school because it was superior to the ill-equipped wooden shack for Hispanic students. Sylvia’s aunt was told by school officials that her children, who had light skin, would be permitted to enroll, but that Sylvia and her brothers, who had darker skin and a Hispanic surname, could not enroll.

Sylvia’s father, aided by civil rights attorney David Marcus, began a community movement to file a lawsuit in federal court in Los Angeles against four Orange County school districts — Westminster, Santa Ana, Garden Grove, and El Modena (now eastern Orange) — on behalf of about 5,000 Hispanic-American school children.

Sylvia Mendez as a child

The trial court found that segregation of Hispanic children violated the 14th Amendment. Tonatiuh reviews why the judge found in favor of the plaintiffs, which I greatly admire: I think it is an excellent practice to treat children with the respect of explaining adult subjects to them, especially in ways they will be able to understand.

Unfortunately for the plaintiffs, the defendant school districts appealed, arguing that the plaintiffs had not stated a federal cause of action; since they were not authorized by California law to segregate the students, they were not acting within their authorized powers “as the state,” and hence were not covered by the 14th amendment. [The author does not go into this much technical detail in his book.] In any event, The Ninth Circuit disagreed, and again ruled in favor of the plaintiffs. Thereafter, then California Governor Earl Warren signed a law stating that all children in California were allowed to go to school together, regardless of race, ethnicity, or language.

trial

[Later, when Earl Warren was serving as Chief Justice on the U.S. Supreme Court, he heard the case Brown v. Board of Education. Thurgood Marshall, the lead attorney, used the arguments developed for Mendez v. Westminster to argue the Brown case. ]

At this point, the story in the book ends, with Sylvia’s mother advising Sylvia that when she returned to the school that initially rejected her, she should hold her head high:

Looking around, she saw that other children were smiling at her. By the end of the day, she had made a friend. And by the end of the school year, she had made many friends of different backgrounds. She knew that her family had fought for that.”

In the Author’s Note that follows the story, Tonatiuh does mention, again to his great credit, that while the Mendez case applied to de jure segregation, it did not apply to de facto segregation, which has actually increased, because of rigidly segregated residential subdivisions, in a development with similar consequences for African-American students. Today, Latino and black students are more likely than ever to be attending segregated schools, largely a function of the composition of the areas in which they live, which in turn is strongly affected by poverty. See research reported by The Civil Rights Project and researchers at the Harvard Graduate School of Education (now located at UCLA where you can find updates to the Harvard research), noting that:

Latinos, who are fast becoming the largest minority group in the country, attend the most severely segregated schools. Latino segregation has been increasing ever since data was first collected in the 1960s….”

Similarly,Tonatiuh cites a 2013 study by the Civil Rights Project at UCLA reporting that “43 percent of Latino students and 38 percent of black students attend schools where fewer than 10 percent of their classmates are white.”

As the author writes:

The Mendez family went to court almost seventy years ago, but their fight is relevant today. As the education specialists in the trial argued, the segregation of children creates feelings of superiority in one group and inferiority in another. We need to be able to interact and mingle so that prejudices break down, so that we can learn from one another, and so that everyone has a fair shot at success.”

Not to mention that schools in poorer districts have a marked dearth of resources and good teachers. The Harvard Civil Rights Project study linked to above finds that “Poverty is linked to lower educational achievement, and racially segregated schools for all groups except whites are almost always schools with high concentrations of poverty.”

That study cites the hostile political environment (and that was in 1999!) observing:

Forty-five years after Brown v. Board of Education declared “separate but equal” as “inherently unequal,” segregation continues to produce unequal educational opportunities, particularly for low-income minority students. . . . In a time when the country is rapidly growing and becoming more diverse, it is important that the nation’s schools reflect this diversity. The immense gains of the civil rights movement cannot be taken for granted. As difficult as progress was to achieve, without a strong national policy supportive of desegregation, it is just as easily rolled back.”

More recent updates on the increasing segregation of schools can be found here, with the LA Times observing “Some 60 years after Brown vs. Board of Education, a series of key Supreme Court decisions have dramatically reduced the number of implementation methods available to communities engaged in school desegregation.” U.S. News points to “A New Culprit in School Segregation? Private Schools.” There is also the problem as Nikole Hannah-Jones, New York Times Magazine writer and recipient of a prestigious “genius grant,” recently stated: “Schools are segregated because white people want them that way. … We won’t fix this problem until we really wrestle with that fact.”

Tonatiuh ends by stating his hope that children learn about the background of civil rights and that “this book will help children . . . realize that their voices are valuable and that they too can make meaningful contributions to this country.”

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Evaluation: This book gives children an intelligent and well-constructed look at the fight for equal rights, while also showing that the battle rights is not just relevant for African-Americans. With the increase in (overt) nativism abetted by the American president himself, the message in this book is all the more important. In addition, the mesmerizing illustrations will teach something about folk art and its ability to convey the truth of a story in spite of its lack of realism. Recommended for all ages.

Rating: 5/5

Published by Abrams Books for Young Readers, an imprint of Abrams, 2014

April 3, 1866 – The Supreme Court Decides Ex parte Milligan

Three cases brought to the Supreme Court during the Civil War were designated as “ex parte” because all three were brought on behalf of citizens detained by the Union Army. Ex parte Milligan 71 U.S. 2 (1866), like the others, had a defendant seeking release under the writ of habeas corpus (which requires the government to demonstrate to a federal judge the factual and legal grounds for detention).

Art. I, §9, cl. 2 of the U.S. Constitution provides that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” But the language does not indicate which branch of government has the power to suspend the privilege of the writ.

During the Civil War, President Lincoln issued a number of orders putting certain not-fully-loyal civilian areas in the North under military control and imposing military law. In 1864, the Union Army arrested five men in Indiana, including Lambdin Milligan. The men were charged with membership in a secret group plotting to steal weapons and to free Confederate soldiers held as prisoners of war. A military court sentenced Milligan to be hanged, but he appealed for his release under the Constitution’s right of habeas corpus.

In Ex parte Milligan, the Court was tasked with deciding whether Lincoln had followed the Constitution when he authorized martial law.

The decision was not issued until a year after the war ended and Lincoln was dead. But the issue remained important; a unanimous Court held that the President had gone too far. As an article for the American Bar Association reports:

The Court stressed that Indiana was not under attack and that Milligan was not connected with Confederate military service, nor was he a prisoner of war. He was arrested at home, not on a military maneuver. Even more important, the courts in Indiana were open and functioning normally during the war. The government could have charged him with treason and tried him in the courts, where he would have had the right to a jury and the right to a fair trial, under the Constitution.”

Thus, in this landmark decision, the Court ruled that Milligan could not be tried by a military tribunal if, as in this case, there was a civilian court available instead. To find otherwise, the Court opined, would mean that “republican government is a failure, and there is an end of liberty regulated by law.”

Justice David Davis

Justice David Davis (who served as Abraham Lincoln’s campaign manager at the 1860 Republican National Convention and was nominated to the Court by Lincoln), wrote elequently for the majority:

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority. [emphasis added]”

Applying martial law against a citizen like Milligan, continued Davis, “destroys every guarantee of the constitution,” and cannot coexist with the concept of civil liberty: “the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”

Over 150 years after the decision, it is still widely cited by scholars and the Court, especially with respect to treatment of the detention and disposition of alleged terrorists. But the Court has also narrowed its reach.

Justice [Indiana Supreme Court] Steven H. David wrote an excellent review of the subsequent cases that limited Milligan’s holding in “Ex parte Milligan and the Detainees at Guantanamo Bay: A Legacy Lost.” Justice David was appointed chief Defense counsel at Guantanamo Bay, Cuba in 2007. There, he observed, “I entered a constitutional no-man’s land of military tribunals and commissions—a veritable black hole of judicial precedent and construction.”

The status of modern terrorists who belong to organizations like Al Queda that have “declared war” against the United States is unclear. As David points out, “None of today’s detainees [in Guantanamo] are citizens of a nation at war with the United States . . . and many were detained not on the field of battle but in places far removed from active combat or military action.” The American Justice Department has chosen to treat such persons as “enemy combatants,” a category meant to subject them to military rather than civil jurisdiction.

This category may even apply to actual U.S. citizens, such as Jose Padilla, who was arrested in Chicago in 2002 on suspicion of being connected to the September 11, 2001, terrorist attacks. President George W. Bush issued an order designating Padilla as an enemy combatant and ordering him to be detained in military custody.

Congress has also approved measures, such as the Detainee Treatment Act of 2005, and the Military Commissions Act of 2006, that attempt to limit the applicability of the writ of habeas corpus.

Justice Anthony Kennedy

In Boumediene et al. v. Bush (553 U.S. 723, 2008) Justice Anthony Kennedy wrote an opinion addressing the question “not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2.”

Without addressing the merits of the case, he concluded:

We hold that petitioners [aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba] may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

Justice Kennedy also commented on the importance of the Judicial Branch balancing the Executive Branch on this question:

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”

David, writing before the time of Trump, but presciently for present times, concluded:

I firmly believe that when historians look back on this period, neither the wealth of our great nation, nor our technological advances, nor our military successes or failures will define our legacy. Our time will be judged instead by whether, in a time of national fear and perceived uncertainty, we followed the rule of law, adhered to the fundamental principles protected by our constitution, and demonstrated to the world that human rights apply to all humans, not just Americans. Did we demonstrate to ourselves that, even in the most difficult times, we practiced what we had been preaching to the world, or did we let fear—and the fear of the rule of law—consume us?”

March 27, 1866 – President Andrew Johnson Vetoes Civil Rights Bill

On this day in history, President Andrew Johnson vetoed the Civil Rights Act passed by Congress which aimed to combat the discriminatory “Black Codes” enacted by the South. The bill offered a legislative definition for the first time of American citizenship and also spelled out the rights citizens were entitled to enjoy without regard to race. The concept of equality of the law was central to the measure.

President Andrew Johnson

As historian Eric Foner summarized the Act in Forever Free: The Story of Emancipation and Reconstruction:

In constitutional terms, the Civil Rights Bill represented the first attempt to give concrete meaning to the Thirteenth Amendment, which ended slavery, to define in legislative terms the essence of freedom. If states could deny blacks the rights specified in the measure, asked one congressman, ‘then I demand to know, of what practical value is the amendment abolishing slavery?’”

President Johnson had objections to each and every section in the legislation, most of the objections having to do with a perceived encroachment on states rights.

But his main objection was a racist one, which he saved for the end of his statement.
In his concluding thoughts, Johnson wrote:

I do not propose to consider the policy of this bill. To me the details of the bill are fraught with evil. The white race and the black race of the South have hitherto lived together under the relations of master and slave – capital owning labor. Now, suddenly, that relation is changed, and as to ownership capital and labor are divorced. They stand now each master of itself. In this new relation, one being necessary to the other, there will be a new adjustment, which both are deeply interested in making harmonious. Each has equal power in settling the terms, and if left to the laws that regulate capital and labor it is confidently believed that they will satisfactorily work out the problem…”

In fact, he averred, “the distinction of race and color is by the bill made to operate in favor of the colored against the white race.”

This, of course, was anathema, and remains so to many whites to this day.

You can read the full text of his objections here.

March 12, 1956 – Publication of “The Southern Manifesto”

On this day in history, an overwhelming majority of Southern senators and congressmen published the “Declaration of Constitutional Principles,” more widely known as the “Southern Manifesto.” The purpose of this document was to denounce the Supreme Court’s 1954 unanimous decision in Brown v. Board of Education (347 U.S. 483), which determined that racial segregation of public schools was unconstitutional. The Southern Manifesto accused the Supreme Court of “clear abuse of judicial power,” pledging “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”

The initial draft of the Declaration was written by South Carolina Senator Strom Thurmond, and it was then fine-tuned by the well-educated lawyers North Carolina Senator Sam Ervin and Mississippi Senator John Stennis.

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The contentions they made, according to University of Chicago Law Professor Justin Driver, were sophisticated, flexible, and employed measured legal arguments to show how the Court “erred” in Brown. The Manifesto eschewed open appeals to racial segregation; rather, the tone strove to avoid alienating white northerners.

To at least this reader, however, the last paragraph, with its hypocritical implication that the writers were only interested in justice, seems a bit less lawyerly than the rest of the document:

In this trying period, as we all seek to right this wrong, we appeal to our people not to be provoked by the agitators and troublemakers invading our states and to scrupulously refrain from disorder and lawless acts.”

In any event, as Professor Driver pointed out:

Although the manifesto’s drafters certainly failed to achieve their primary objective of motivating the Supreme Court to reverse Brown, they largely succeeded in realizing their secondary aim: minimizing the reach of the court’s historic decision.”

Today in public school systems, the segregation of students is effected in part by rigid residential racial patterns (private actions, resulting in de facto segregation) rather than deliberate action of governmental authorities (state action, resulting in de jure segregation). Today, Latino and black students are more likely than ever to be attending segregated schools, largely a function of the composition of the areas in which they live, which in turn is strongly affected by poverty. See research by The Civil Rights Project and researchers at the Harvard Graduate School of Education reported here and summarized here. The Civil Rights Project, now located at UCLA, has updates to the 1999 Harvard research here, noting that in 2017:

Black and Latino students in the South are increasingly isolated in intensely segregated schools and are doubly segregated in schools serving low-income students, according to new research . . . by the Civil Rights Project/Proyecto Derechos Civiles at UCLA and the Center for Education and Civil Rights at Penn State.

‘While significant gains in integration were made during the Civil Rights era, we are unfortunately seeing a troubling reversal of those trends,’ says Gary Orfield, Co- Director of the Civil Rights Project.”

Moreover, schools in poorer districts have a marked dearth of resources and good teachers. The Harvard Civil Rights Project study linked to above finds that “Poverty is linked to lower educational achievement, and racially segregated schools for all groups except whites are almost always schools with high concentrations of poverty.”

That study cites the hostile political environment (and that was in 1999!) observing:

Forty-five years after Brown v. Board of Education declared “separate but equal” as “inherently unequal,” segregation continues to produce unequal educational opportunities, particularly for low-income minority students. . . . In a time when the country is rapidly growing and becoming more diverse, it is important that the nation’s schools reflect this diversity. The immense gains of the civil rights movement cannot be taken for granted. As difficult as progress was to achieve, without a strong national policy supportive of desegregation, it is just as easily rolled back.”

Remedial efforts have backfired in the courts. Conservative justices have used an “anemic reading of Brown” as Professor Driver calls it, to rule that taking race into account to promote integration violates the Equal Protection Clause, most notably in the 2007 Supreme Court case Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), also known as the “PICS” case. As “The New York Times” reported:

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.

‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ [Justice Roberts] said. His side of the debate, the chief justice said, was ‘more faithful to the heritage of Brown’ . . . . ‘When it comes to using race to assign children to schools, history will be heard,’ he said.”

Chief Justice Roberts

Chief Justice Roberts

March 11, 1850 – William Seward Speaks Out Against the Fugitive Slave Bill

On this day in history, William Seward, at the time a U.S. Senator from the state of New York (later to become Abraham Lincoln’s Secretary of State), spoke out against the proposed Fugitive Slave Bill – (to no avail; it went on to become the Fugitive Slave Act of 1850).

We are not slaveholders. We cannot, in our judgment, be either true Christians or real freemen, if we impose on another a chain that we defy all human power to fasten on ourselves. You believe and think otherwise, and doubtless with equal sincerity. We judge you not, and He alone who ordained the conscience of man and its laws of action can judge us. Do we, then, in this conflict of opinion, demand of you an unreasonable thing in asking that, since you will have property that can and will exercise human powers to effect its escape, you shall be your own police, and in acting among us as such you shall conform to principles indispensable to the security of admitted rights of freemen? If you will have this law executed, you must alleviate, not increase, its rigors.”

William Seward in 1851

William Seward in 1851

He further declared, invoking the words of the Declaration of Independence:

I cannot stop to debate long with those who maintain that slavery is itself practically economical and humane. I might be content with saying that there are some axioms in political science that a statesman or a founder of states may adopt, especially in the Congress of the United States, and that among those axioms are these: That all men are created equal, and have inalienable rights of life, liberty, and the choice of pursuits of happiness; that knowledge promotes virtue, and righteousness exalteth a nation; that freedom is preferable to slavery, and that democratic governments, where they can be maintained by acquiescence, without force, are preferable to institutions exercising arbitrary and irresponsible power.”

His whole speech, or the excerpts from it (it is very long) is eloquent, impassioned, and definitely worth reading. You can do so here.

Women’s History Month: Women’s Right to Choose vs. Abortion Laws

Our Bodies Ourselves (OBOS) is a nonprofit, public interest organization based in Boston, Mass., that develops and promotes evidence-based information on girls’ and women’s reproductive health and sexuality. OBOS provides an excellent online summary of the history of laws relating to abortion in the U.S.

Modern abortion law really started on January 22, 1973, when Roe v. Wade (410 U.S. 113) was decided by the U.S. Supreme Court.

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribed abortions except on medical advice for the purpose of saving the mother’s life. In Roe, the Court found:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”

Thereafter, Medicaid — a program funded jointly by the federal government and individual states — covered abortion care as part of comprehensive health care services provided to low-income women. However, in 1976, Congress passed the Hyde Amendment, which prohibited the use of federal funds for abortion care, except in cases of rape, incest or endangerment to the life of the mother. The law effectively left the decision of funding abortion to the states, and most states choose to enact bans in their own Medicaid programs. The Hyde Amendment has been reenacted by Congress every year since 1976.

Because, as data show, the unintended pregnancy rate among poor women is five times the rates for higher-income women, the law’s impact has been disproportionate. (One reported reason for the discrepancy is poor women’s limited access to contraception, which is expensive.)

In 1980, Harris v. McRae (448 U.S. 297) upheld the Hyde Amendment in a narrowly divided ruling delivered by Justice Potter Stewart, declaring that women’s constitutional rights were not violated by the ban on federal funding for abortions.

In 1992, the Court, in Planned Parenthood v. Casey (505 U.S. 833), in a 5-4 opinion written by Justice Sandra Day O’Connor, upheld a highly restrictive Pennsylvania law that included mandatory waiting periods, parental consent, and biased information. Further, the Court allowed laws designed to limit access to abortion at any stage of pregnancy, so long as the law does not place an “undue burden” on a woman’s access to abortion.

In the 2007 case Gonzales v. Carhart (550 U.S. 124), the Supreme Court upheld the so-called Partial-Birth Abortion (PBA) Ban Act. This law was passed by Congress and signed by President George W. Bush in 2003. The question before the Court was whether PBA was an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother.

In a 5-4 decision delivered by Justice Anthony Kennedy, the Court found that because the Act applies only to a specific method of abortion, the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. In her dissent to Gonzales v. Carhart, Supreme Court Justice Ruth Bader Ginsburg decried the ruling, saying:

Today’s decision is alarming … It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”

The Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the U.S., documents that since Roe v. Wade, “states have constructed a lattice work of abortion law, codifying, regulating and limiting whether, when and under what circumstances a woman may obtain an abortion.” The pace has been picking up with the overwhelming ascendancy of conservatives in state governments. In 2015 alone, conservative lawmakers considered nearly 400 bills to limit a woman’s access to legal abortion and passed 57 new restrictions. More recently, the Institute reports:

States continued their assault on abortion in 2017, with 19 states adopting 63 new restrictions on abortion rights and access. That total is the largest number of abortion restrictions enacted in a year since 2013. In addition, Iowa, Kentucky and South Carolina all moved to restrict public funding for family planning programs and providers in 2017, bringing to 15 the number of states that have taken aim at the family planning safety net since the 2015 release of a series of deceptively edited videos seeking to discredit Planned Parenthood.”

Data up to 2016

A 2018 report charges:

Coercive intent and practices are at the core of social conservatives’ reproductive health agenda, including virtually every reproductive health–related initiative from the Trump administration and social conservatives in Congress over the past year.”

Perhaps even more worrisome:

Against a national backdrop of policymaking that often appears to willfully ignore clear and compelling data, it is important to note that 17 states have laws on abortion that match at least five of 10 major categories of restrictions that conflict with scientific evidence. Kansas, South Dakota and Texas top the list with restrictions in eight of these categories; Louisiana and Oklahoma each have seven. An additional 12 states have 2–4 of these types of restrictions, and so are considered in moderate conflict with the science (see Flouting the Facts: State Abortion Restrictions Flying in the Face of Science.) Only 21 states have laws that pose no or limited conflicts with scientific evidence.”

You can find an overview of state abortion laws as of February 2018 here.

The laws have come up with any number of ways to reduce availability of abortion services, in particular, by targeted regulation of abortion providers (TRAP) regulations. As OBOS explains, TRAP regulations single out abortion providers and facilities by mandating burdensome and medically unnecessary requirements that are more stringent than requirements for other medical procedures of similar risk. Abortion has been found to be one of the safest medical procedures in the country, far safer than pregnancy and childbirth, and complications are rare. The Centers for Disease Control reports abortions are “more than 99 percent safe.”

As OBOS contends, “The true intent of TRAP laws is not to improve the safety of abortion but to place onerous restrictions on clinics and abortion providers so that they must stop providing services.” According to the Guttmacher Institute, as of 2017, 24 states have TRAP laws or policies in place.

Restrictions on abortion coverage are not limited to public funding. The Affordable Care Act (ACA) actually extended the Hyde Amendment restrictions on abortion coverage to states’ newly created health insurance exchanges. The ACA also allows states to prohibit abortion coverage entirely in health insurance plans offered through an exchange. Since the law was implemented, twenty-five states have barred health plans participating in the exchange from covering abortion. The ACA permits providers and facilities to refuse to provide, pay, or refer for abortion services under federal refusal provisions.

What does this mean for women’s rights? It’s not a happy picture if you don’t believe women should be forced to undergo ultrasounds (sometimes anal) and/or give up the right to safe interruptions of unwanted pregnancies. Pregnancies that are the result of rape (yes! you can get pregnant even if you are “legitimately” raped!) or other unpleasant circumstances that could cause a child to be unwanted or neglected or to ruin the life of the mother (as opposed to the person impregnating her), must proceed.

Unfortunately, according to the National Institutes of Health, statistics tallied through 2008 reveal:

Every year, worldwide, about 42 million women with unintended pregnancies choose abortion, and nearly half of these procedures, 20 million, are unsafe. Some 68,000 women die of unsafe abortion annually, making it one of the leading causes of maternal mortality (13%). Of the women who survive unsafe abortion, 5 million will suffer long-term health complications.”

Needless to say, restrictive laws associated with high rates of unsafe abortions. A study by WHO and the Guttmacher Institute published in The Lancet of abortions conducted between 2010 and 2014 showed:

In countries where abortion is completely banned or permitted only to save the woman’s life or preserve her physical health, only 1 in 4 abortions were safe; whereas, in countries where abortion is legal on broader grounds, nearly 9 in 10 abortions were done safely. Restricting access to abortions does not reduce the number of abortions.” [emphasis added]

It concludes:

When women and girls cannot access effective contraception and safe abortion services, there are serious consequences for their own health and that of their families. This should not happen. But despite recent advances in technology and evidence, too many unsafe abortions still occur, and too many women continue to suffer and die.”

Some may wonder why there some women who seek abortions after twenty weeks, a common prohibition point for the new legislation. According to a pediatric cardiologist specializing in high-risk pregnancies:

The answer is that comprehensive fetal testing, such as anatomical sonograms and ultrasounds of the heart, are typically performed just before 20 weeks of gestation. Such scans are critical for uncovering major birth defects, such as anencephaly (severe brain malformations), major heart defects, missing organs and limbs, and other severe birth defects. Fetal development is a complex process that often goes awry. Roughly 2 percent of all pregnancies are complicated by a major birth defect, and of those about 0.5 percent have a chromosomal defect, such as an extra or missing segment of normal DNA. Birth defects are a leading cause of infant mortality, and in many cases of severe birth defects, no medical treatment can salvage a fetus’s life or result in any measure of normal future health. [my emphasis]”

Nevertheless, here are the sad statistics for women’s “choice”:

You can access a more detailed chart about reproductive rights at the excellent Guttmacher Institute site, here. You can access information relating to laws restricting a man’s right to get women pregnant and pay for the consequences, um, nowhere.